United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1892

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Jesse Ball, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

United States of America, *

* [PUBLISHED]

Appellee. *

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 Submitted: September 6, 1999

 Filed: October 7, 1999 

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Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.

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PER CURIAM.

Jesse Ball filed a postconviction motion for the return of $776 in United States

currency in the district court where he had been criminally tried and convicted of drug

trafficking offenses. The government argued that the motion should be denied as moot

because the currency had been seized by the St. Louis Metropolitan Police Department

and was never in the United States government’s custody. The court wrote “Request

denied for lack of jurisdiction” on the motion.

Later, Ball again moved for the return of the seized property, arguing that the

district court had jurisdiction. After the government reminded the court that it had
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denied the previous motion for lack of jurisdiction, the court entered an order denying

Ball’s motion for lack of jurisdiction and ordering the clerk of court not to accept

further motions for return of property.

On appeal, Ball argues that the district court erroneously concluded that it lacked

jurisdiction. Ball concedes in his brief that the currency was seized pursuant to a state

court issued search warrant and that it was never introduced or used against him as

evidence during his federal trial. (Appellant's Br. at unnumbered page 4.) See United

States v. Huffhines, 986 F.2d 306 (9th Cir. 1993) (Rule 41 jurisdiction in federal court

reaches only so far as state searches with direct federal authorization. The federal

government is not accountable for state seized items that it never possessed or used as

evidence.) (Relied on in United States v. Woodall, 107 F.3d 876, 1997 WL 53052 (8th

Cir. 1997) (unpublished)). Ball contends the government had constructive possession

of the currency. The government responds that regardless of whether the court’s first

ruling was correct, Ball did not appeal it, and therefore may not challenge it in this

appeal from the denial of his second motion.

We disagree. As a postconviction motion for return of seized property is treated

as a civil equitable action, see Thompson v. Covington, 47 F.3d 974, 975 (8th Cir.

1995) (per curiam), it is subject to the Federal Rules of Civil Procedure. The district

court’s first ruling, which was handwritten on Ball’s motion, was not an effective final

judgment because it did not satisfy the separate-document requirement. See Fed. R.

Civ. P. 58. We enforce the requirement because Ball would otherwise lose his right to

appeal. See Sanders v. Clemco Indus., 862 F.2d 161, 166-67 (8th Cir. 1988).

We construe the district court’s separate written order denying Ball’s second

motion for lack of jurisdiction as a final judgment, giving this court jurisdiction over the

appeal, and presenting the question whether the district court correctly concluded that

it lacked jurisdiction. See McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995)

(dismissal for lack of jurisdiction is reviewed de novo).
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We conclude that the district court had jurisdiction over Ball’s motion for return

of the money because it was the court in which he had been criminally tried. See

Thompson, 47 F.3d at 975. We also conclude that the mootness argument advanced

by the government in its response to Ball’s first motion was incorrect, as the

government appears to acknowledge on appeal. See id. (motion for return of seized

property not mooted by government’s assertion that it cannot locate property); United

States v. Burton, 167 F.3d 410, 410-11 (8th Cir. 1999) (district court denied motion for

return of seized property because government asserted that it never had custody of

property; reversed and remanded because district court did not receive evidence to

determine who had custody or possession of property).

Accordingly, we reverse the judgment of the district court and remand for further

proceedings consistent with this opinion to determine whether or not the government

ever possessed the currency.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.